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PrintWhen Military Reservists Are Called Up from Your Small Business
By John L. Duoba, Business Owner's Toolkit Staff Writer
For the third time since 1999, and in the largest numbers seen since the Gulf War of 1991, employers must consider the immediate workplace effects of military reservists being called to duty.
So before these workers are called away from their jobs, you'll need to refamiliarize yourself with the current military leave and reemployment rights laws, as well as reviewing or updating your company's policies.
In addition, you'll need to enact any contingency plans you have for this situation, as for small businesses especially, the loss of one or more key employees (or the owner, if called to duty) can be crippling to operations.
But first we'll begin with the most common employment issues.
- Federal Military Leave Law -- All civilian employers, whether private or public and regardless of size, are covered by the Uniformed Services Employment and Reemployment Rights Act of 1994. USERRA provides for military leaves of absence and reemployment of eligible employees when they return from military leave.
- State Military Leave Laws -- All states, including the District of Columbia and Puerto Rico, have laws regulating military leave. While most states have passed laws establishing reemployment rights as well for those serving in the military, USERRA supersedes state laws that limit or condition its rights or benefits; however, it does not displace state laws that provide greater rights.
- Eligibility for Leave -- Absences to perform any duty (whether voluntary or involuntary) in a "uniformed service" are covered by USERRA, including active duty as well as absences for training, weekend drills, summer camp and fitness-for-duty examinations.
- Notice Requirements -- Employees are eligible to take military leave if they or an appropriate military officer give advance written or oral notice to the employer of the employee's military service. USERRA does not set a specific time for giving advance notice, but employees should make every effort to provide reasonable notice, depending on individual circumstances. No notice is required if doing so is impossible or unreasonable because of military necessity or other legitimate reasons. Written proof of the need to take military leave cannot be required to grant leave. Only if the combined length of an employee's prior military leaves is more than five years may leave be denied. Even if an employer thinks the timing, duration, frequency or nature of the employee's military service is unreasonable, it cannot deny the employee leave from work.
- Pay During Leave -- USERRA does not require pay during military leave. However, companies may voluntarily pay reservists the difference between their regular wage and the military pay received during annual summer training. Some state laws may have additional pay requirements for employees during military duty.
- Vacation -- Federal law gives employees on military leave the right to use any vacation or similar leave with pay that they accrued prior to military service. But use of accrued vacation time is at the employees' option; employers cannot require the use of vacation time while on military leave.
- Health Benefits -- Employers must provide COBRA-like health benefit continuation coverage for persons who are absent from work to serve in the military, even when the employer, due to its size, is not covered by COBRA (under different circumstances, employers with fewer than 20 employees are exempt from COBRA). If a person's health plan coverage would terminate because of an absence due to military service, the employee may elect to continue the health plan coverage for up to 18 months after the absence begins or for the period of service, whichever period is shorter. The employee cannot be required to pay more than 102 percent of the full premium for the coverage. If the military service lasts for 30 or fewer days, the employee cannot be required to pay more than the normal employee share of any premium.
Continuation coverage cannot be discontinued by an employer merely because activated military personnel receive health coverage as active duty members of the armed forces and their family members are eligible to receive coverage under the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS). A waiting period or exclusion cannot be imposed upon reinstatement of coverage if health coverage would have been provided to an employee if the employee had not been absent for military service. However, an exception applies to service-connected injuries or illnesses. - Other Benefits -- Employees on military leave are entitled to participate in any benefits that are not based on seniority, and that are available to employees having similar seniority, status or pay who are on nonmilitary leaves of absence. Examples of this could include year-end bonuses, insurance and accrual of sick or vacation days or any other benefit not based on length of employment that is available to other employees on leaves of absence.
- Replacements -- Employers are free to fill vacancies left by employees on military leave. However, a returning service member is entitled to the reemployment position required by USERRA regardless of whether another person occupies it. The returnee must be placed in the required position, even if this results in "bumping" the current employee.
- Reemployment -- Employees who have taken military leave generally have the right to return to their civilian job without loss of seniority or benefits. The law regarding reemployment rights is lengthy and complex, however.
As for maintaining business operations in the wake of this disruption, our advice is to be flexible, trying to make the best of a fluid situation. Staffing options include the use of temporary employees/agencies and independent contractors. This would save time and money in the administration of payroll taxes and employee benefits, as well as allow a way to hold a reservist's position upon return. (Always be upfront with replacement personnel about the situation.) It also presents the chance to train and prepare another current employee for greater opportunities within the company. Both employer and employee could take advantage of this trial run or training period. The employee could benefit from the motivation of new duties and possibly extra pay; the employer is given the opportunity to assess the worker's skills and the company's new structure, which at the least results in a well-trained back-up and at the most could expand operations for the better upon full staffing. If you, the owner, are called to duty, you'll have to rely on any contingency plans to run operations in your absence. Certainly, this can be a difficult situation, and you shouldn't feel as though you're being punished for your service. As we've been reporting for some time, there are help resources available from the Internal Revenue Service, Small Business Administration and Federal Emergency Management Agency, as well as state and military programs. In addition, The Labor Department has made available updated information to help reservists and members of the National Guard preparing to be deployed better understand their pension and health benefits coverage rights through their private-sector employers. A copy of the Frequently Asked Questions and Answers can be accessed through the Pension and Welfare Benefits Administration's web site at www.dol.gov/pwba. The public can call 1-866--275-7922 with questions or submit them electronically at www.askpwba.dol.gov. Tax payments can be delayed without penalty, tax credits can be used to soften the financial blow, low-interest loans can be applied for, and business and financial advice can be sought. Obviously, the changes to your workplace will require sacrifice, extra effort and creative thinking. Right now, these are all qualities in high demand throughout the United States. |
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